The Supreme Court is considering the Constitutionality of Virginia’s law banning cross-burning; here is the Washington Post’s account of the oral argument. Let me preface these comments by saying that I am not a First Amendment scholar, and have not followed the nuances of this case. Readers should feel free to weigh in if they have an opinion.
For what it’s worth, I think the Supreme Court screwed up the First Amendment a long time ago. I am close to being a First Amendment absolutist, but before you can argue about “free speech,” you have to define what “speech” is. I think the Supreme Court has done this very poorly. For example, however much I might personally approve of nude dancing, it is not “speech” and is not Constitutionally protected. I think a strong argument can be made that, likewise, burning a cross in someone’s yard is not “speech.” This is the point that, as WaPo reported so breathlessly, Justice Thomas was making during the oral argument. If a gangster says, “Give me your wallet or I’ll blow your brains out,” he has committed a crime. His threat is not protected “speech” despite the fact that it consisted of spoken words. Likewise, if, as in one of the Godfather movies, a gangster delivers to another gangster a dead fish in a box, his threat is not “speech.” I think it is reasonable to view burning a cross as comparable to delivering a dead fish. It conveys a threat, but is not “speech” within the meaning of the First Amendment. So the Supreme Court likely will, and in my view probably should, uphold the Virginia statute. Based on what I have read, I think the Virginia law can be distinguished from the St. Paul “hate speech” ordinance that the Court invalidated a few years ago.
What most clearly constitutes “speech” within the meaning of the First Amendment is, of course, debate about which candidates should be elected to public office. It is deeply ironic that, at the same time that the protected status of cross burning is being hotly debated, and the protected status of nude dancing seems to be securely established, the Court will be called upon to remind Congress that it cannot prevent interested citizens from voicing their opinions about candidates within thirty days of an election.
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